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2008 DIGILAW 554 (CAL)

Biswajit Das v. Ruma Barh

2008-05-16

S.K.GUPTA

body2008
Judgment :- (1). THIS Second Appeal has been preferred against the judgment dated 18/10/2001 passed by the learned Additional district Judge, 5th Court, Barasat in Title Appeal No. 173 of 2000, whereby he affirmed the judgment/order dated 19/9/2000 passed by the learned Munsiff, 4th Court at Sealdah in Title Suit no. 6 of 2000. (2). THE fact leading to the filing of this second Appeal is that the plaintiff/appellant filed a suit against the defendants praying for declaration of title and other reliefs in respect of the properties mentioned in the schedule of the plaint. The suit was contested by the defendants by filing written statement. Duringthe pendency of the said suit, the defendants filed a petition under Order VII rule 11 of the Code of Civil Procedure praying for rejection of the plaint and also challenged the maintainability of the suit, as filed by the plaintiff. Against the said petition, the plaintiff/appellant filed written objection. The learned Trial court, at the time of the hearing of the petition filed under Order VII Rule 11, code of Civil Procedure took up the question of maintainability of the suit, as was filed before him. In his impugned order the learned Trial Judge observed that although, the prayer was made for rejection of the plaint under Order VII rule 11, Code of Civil Procedure, but in fact the maintainability of the suit was under challenge. As such, the learned trial Court was pleased to treat the said petition, as filed under Order VII Rule 11 of the Code of Civil Procedure to be a petition under Order XIV Rule 2 of the Code of Civil Procedure. (3). AFTER hearing the parties, the learned trial Court rejected the contention of the defendants that the plaint did not disclose any cause of action. He was also pleased to hold that the suit was not barred by limitation, as claimed by the defendants and as such, it was observed that the plaint could not be rejected as per provisions of Order VII Rule 11, code of Civil Procedure, as prayed by the defendants. (4). He was also pleased to hold that the suit was not barred by limitation, as claimed by the defendants and as such, it was observed that the plaint could not be rejected as per provisions of Order VII Rule 11, code of Civil Procedure, as prayed by the defendants. (4). HOWEVER, by the selfsame order, the learned trial Court took up the issue of maintainability of the suit and was pleased to hold that from the judgment and decree of the partition suit No. T. S. 60 of 1929 it appeared that the property in question for which the present suit was filed, was also the subject-matter of the said partition suit. Accordingly, the learned Trial Judge was pleased to hold that since the right, title and interest of the parties were finally disposed of by the earlier partition suit, same cannot be reopened by filing the present suit. Under such circumstances, the learned trial Court held that the suit, as filed by the plaintiff/appellant is not maintainable as per provisions of Order XIV Rule 2 of the Code of Civil Procedure and consequently, same was dismissed. (5). BEING. AGGRIEVED and dissatisfied with the said order of the learned trial Court, Title Appeal No. 73 of 2000 was preferred and the learned First appellate Court, by his impugned order, was pleased to hold that the right, title and interest of the parties in respect of the properties, as mentioned in the present suit, were already decided in T. S. No. 60 of 1929 and as such, he held that the learned trial Court was perfectly justified in holding that the present suit was not maintainable. Accordingly, the learned First Appellate Court was pleased to affirm the decision of the learned trial Court in this respect. (6). AS the plaintiff/appellant is dissatisfied with the judgments of both the Courts below, he has preferred this Second Appeal. It is contended by the appellant that the impugned order, as passed by the learned trial Court was thoroughly illegal, as while disposing of the petition under Order VII Rule 11, code of Civil Procedure he practically converted the said petition to be a petition filed under Order XIV Rule 2 of the Code of Civil Procedure without affording any opportunity to the plaintiff to file objection against such claim. It is the specific case of the plaintiff/appellant that he filed objection against the points, as raised in the petition filed under Order VII Rule 11 of the Code of Civil procedure and no opportunity was given to the plaintiff/appellant to controvert the claim of the defendants that the suit was not maintainable as per Order xiv Rule 2 of the Code of Civil Procedure. Accordingly, it is claimed that the order, so passed by the learned trial Court, offends the principle of natural justice and as such, same should be set aside. (7). APART from that, the appellant has further claimed that the properties as involved in the partition suit of the year 1929 are not the same that have been described in the schedule of the present suit. In order to come to a conclusion regarding the claim that both the properties are same, it requires consideration of evidence of the parties and since the provisions of Order XIV rule 2 of Code of Civil Procedure clearly provides a bar for disposal of a suit in such a way where questions of fact and law are involved, it was not proper on the part of the learned trial Court to dismiss the suit on the ground of maintainability, as per provisions of Order XIV Rule 2 of the Code of Civil procedure. The appellant has prayed for setting aside the orders, so passed by the Courts below. (8). IT appears that, the Second Appeal has been admitted by the learned Division Bench, but at the time of admission of the appeal, no substantial question of law was framed. It is the settled position that in order to dispose of a Second Appeal, it is incumbent upon the Court to frame substantial question of law. As such, on 14/2/2008, this Court, after hearing the learned Advocates for both the sides, framed the following substantial questions of law: 1) Whether both the Courts below committed substantial error in law in converting the petition under Order VII Rule 11 of the Code of Civil Procedure to be a petition under Order XIV Rule 2 of the code of Civil Procedure without affording any opportunity to the plaintiff to file objection against such prayer ? ii) Whether both the Courts below committed substantial error in law in dismissing the suit on the basis of the fact which has not yet been proved by way of adducing evidence and thereby came to the conclusion that the suit as framed was not maintainable in view of provisions of the Order 14 Rule 2 of the C. P. C. ? iii) Whether both the Courts below committed substantial error in law in holding that the properties involved in the earlier partition suit are same with that of the properties of the present suit, although sufficient proof to that effect was not placed before the court below ? iv) Whether both the Courts below committed substantial error in law in not properly appreciating the contentions, as raised by the parties thereby causing miscarriage of justice leading the judgment to be perverse in nature ? (9). ON the basis of those questions, as framed in connection with this appeal, learned Advocates for both the sides made their submissions. I have taken into consideration the submissions, as made by the learned Advocates for the parties. It is the admitted position that the plaintiff filed the suit praying for declaration of title to the suit property along with other consequential reliefs. It appears that the defendants were contesting the said suit by filing written statement. While the suit was pending in the Court below, the defendants filed a petition under Order VIl Rule 11, Code of Civil Procedure, praying for rejection of the plaint, as it did not disclose any cause of action and also on the ground that it was barred as per provisions of Limitation Act. As against this petition, the plaintiff filed objection, wherein the claim, as set out in the petition under order VII Rule 11, C. P. C. was controverted. The learned trial Court on the basis of the said petition took up the matter for hearing and by his impugned order came to the conclusion that the suit filed by the plaintiff disclosed sufficient cause of action and it was not barred by limitation. The learned trial Court on the basis of the said petition took up the matter for hearing and by his impugned order came to the conclusion that the suit filed by the plaintiff disclosed sufficient cause of action and it was not barred by limitation. While passing such order, the learned trial Court was of the opinion that in fact in the petition under Order vii Rule 11, Code of Civil Procedure, the defendants raised question of maintainability and, as such, out of his own, the learned trial Court treated the said petition to be a petition under Order XIV Rule 2, Code of Civil Procedure. It will be beneficial for us if we look into the provisions of Order VII Rule 11, code of Civil Procedure and Order XIV Rule 2, Code of Civil Procedure which are quoted below : order VII Rule 11. Rejection of plaint.-The plaint shall be rejected in the following cases :- (a) where it does not disclose a cause of action ; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ; (d) where the suit appears from the statement in the plaint to be barred by any law ; (e) where it is not filed in duplicate ; (f) where the plaintiff fails to comply with the provisions of rule 9 ; provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exception nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff. Order XIV Rule 2. Order XIV Rule 2. Court to pronounce judgment on all issues-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to if the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. " (10). A bare reading of those two provisions will clearly show that there is gulf of difference in between those two provisions. As such, it is not understood as to the reason for the Court below to suo motu treat the petition under Order VII Rule 11, Code of Civil Procedure to be a petition under Order xiv Rule 2, Code of Civil Procedure. By making such observation, this Court is not giving any impression that the Court is powerless to make such a conversion. In this respect, the decisions reported in Cal HN (2005)3 1 (Sukhendu Marty v. Abhinava Prakashan and Ors.), (2001)2 Cal HN 584 : 2001 wblr (Cal) 222 (Life Insurance Corporation of India v. Mirta Una Pvt. Ltd.), (2004)3 Cal HN 46 (Bimal Krishna Bose v. Alanga Medical Hall and Ors. and (2002)2 Cal LJ 133 (Sindhu Nath Pahan @ Mondal v. Nishi Kanta Pahan and ors.), as cited by the learned Advocate for the respondents, are very much relevant. (11). IN the decision reported in (2002)2 Cal LJ 133 (supra) it was held that in Civil. Court there is ample scope for granting relief in appropriate cases by applying the correct section of the Code by the Court itself and on the ground of mentioning a wrong section, relief to a deserving party cannot be denied. (12). (11). IN the decision reported in (2002)2 Cal LJ 133 (supra) it was held that in Civil. Court there is ample scope for granting relief in appropriate cases by applying the correct section of the Code by the Court itself and on the ground of mentioning a wrong section, relief to a deserving party cannot be denied. (12). IN the decision reported in (2004)3 Cal HN 46 (supra) it was held "a wrong label or nomenclature is not at all a guiding factor since the court should look to the substance rather than the form. So the above mistake may be ignored and the application may be treated as one under order 22 Rule 3, CP Code. " (13). IN the decision reported in (2001)2 Cal HN 584 : 2001 WBLR (Cal)222 (supra), the learned Single Judge of this Court held "it is now settled law that if in giving relief to a litigant a Court mentions a wrong provision of law, for that reason alone, the order cannot be declared invalid if such order is otherwise within the power of the Court making it. " (14). SAME principle was decided in the case reported in (2005)3 Cal hn 1 (supra), wherein the Division Bench of this Court observed "it is now settled law that in deciding the question whether a particular order is appealable or not, the Court should not be guided by the wrong quotation of the provisions of a statute by the Court in the order impugned or by such wrong description given by parties of an application upon which the order was passed, but the Appellate Court should find out the exact provision of the statute which authorised the Court to pass such order. " (15). FROM the decisions, as cited above, it is very much clear that it is always open for the Court to give relief to a litigant by applying the proper provision of law although, in the petition a wrong provision has been quoted. There cannot be any dispute in respect of the ratio, as decided in those cases, (16). AT the same time, judicial decorum and the principle of natural justice demand that in such a circumstance opportunity should be given to the other side to file objection against such a claim, as raised by the other side. There cannot be any dispute in respect of the ratio, as decided in those cases, (16). AT the same time, judicial decorum and the principle of natural justice demand that in such a circumstance opportunity should be given to the other side to file objection against such a claim, as raised by the other side. It is already pointed out that the objection was filed by the plaintiff on the basis of the petition under Order VII Rule 11, Code of Civil Procedure. The plaintiff did not get any opportunity to controvert the claim of the defendants that the suit was not maintainable as per provisions of Order XIV Rule 2, Code of Civil procedure. It appears that the Order XIV Rule 2, Code of Civil Procedure provides that recourse to such provision can only be taken if the suit can be disposed of on an issue of law only and if such issue relates to the jurisdiction of the Court or where a bar to the suit created by any law for the time being in force and under such circumstances, the Court can dispose of the suit on that legal point without settling the other issues. But so far as the present case is concerned, it appears that nowhere the jurisdiction of the Court was challenged or there was any bar in filing the suit created by any law for the time being in force. This is very, much apparent when it appears that the learned trial Court held that the suit was not barred by limitation. (17). LEARNED Advocate for the respondents argued that it was submitted before the learned trial Court as well as before the learned First Appellate court that the suit was not maintainable in the eye of law, as right, title and interest in respect of the suit properties were already decided in another partition suit in between the predecessors of the parties which took place in the year 1929. As such, according to him, learned Courts below were perfectly justified in holding that the subsequent suit in respect of the selfsame properties is not permissible. As such, according to him, learned Courts below were perfectly justified in holding that the subsequent suit in respect of the selfsame properties is not permissible. It appears that the plaintiff disputed this claim that the properties involved in the 1929 suit are the same with that of the properties involved in the present suit and as such, the learned Advocate for the appellant argued that since this is a pure question of fact, it requires evidence to be recorded by the Court in corning to a final decision. (18). ON the other hand, learned Advocate for the respondents argued by placing several documents before this Court in support of his submission that the properties involved in the partition suit of the year 1929 are the same with that of the properties, as mentioned in the present suit. I am afraid, this submission of the learned Advocate for the respondents is not acceptable. This Court, in exercise of its power under Section 100 of the Code of Civil procedure, cannot look into and consider those documents as were placed by the learned Advocate for the respondents before this Court at the time of hearing of this appeal. Those documents must be placed before the Court below for consideration by way of adducing evidence so that other side can get opportunity to controvert the same. Without admitting those documents into evidence, it is not permissible for this Court to come to a conclusion that the properties involved In both the suits are one and same. Under such circumstances, I am of opinion that since the question of similarity in between the two properties, as mentioned in both the suits, is very much involved in connection with this hearing, that question cannot be decided with the aid and assistance of Order XIV Rule 2, Code of Civil Procedure. Those questions of fact are certainly to be decided by the Court below after the parties adduce evidence in support of their respective contentions. As such, it must be held that both the Courts erred in law in deciding the question of maintainability of the suit without affording opportunities to the parties to adduce evidence in support of their respective contentions. As such, it must be held that both the Courts erred in law in deciding the question of maintainability of the suit without affording opportunities to the parties to adduce evidence in support of their respective contentions. I have got no hesitation to hold that the order, so passed by the learned trial Court, which was affirmed by the learned first Appellate Court, appears to be thoroughly illegal and without jurisdiction. As such, in my considered opinion, it appears that it is a fit case where the said order of dismissal of the suit should be set aside immediately and the matter should be sent back to the trial Court for allowing opportunities to the parties to adduce evidence in support and against the claim of maintainability of the suit. All the substantial questions of law are answered accordingly. (19). IN the result, the appeal and the same is allowed on contest but without cost. The order dated 18/10/2001 passed by the learned Additional district Judge, 5th Court, Barasat in Title Appeal No. 173 of 2000, by which he affirmed the judgment dated 19/9/2000 passed by the learned Munsiff, 4th court at Sealdah in Title Suit No. 6 of 2000, are set aside. The matter is sent back to the trial Court with the direction to consider all the issues by way of allowing the parties to adduce evidence in support of their respective claims and thereafter after considering the entire materials, the trial Court is directed to dispose of the suit on merit. As the matter is pending for a long time, the learned trial Court is directed to take effective steps for early disposal of the suit without allowing any unnecessary adjournment to either of the side. (20). SEND a copy of this judgment along with L. C. R. to the trial Court at once for information and necessary action, as indicated above.